A judge ordered the Wisconsin Elections Commission to verify the citizenship of all voters in time for the next election in February, and determine whether any noncitizens are registered. (Photo by Alex Shur / Votebeat)

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

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What happened?

A Waukesha County judge on Friday ordered the Wisconsin Elections Commission to determine whether any noncitizens are registered to vote and to stop accepting voter registrations without verifying that the applicant is a U.S. citizen.

What’s the dispute?

A Pewaukee resident, represented by conservative attorneys, filed a lawsuit last year seeking to require the election commission to verify citizenship of registered voters and applicants. The suit also sought to force the Wisconsin Department of Transportation to compare its citizenship information against voter rolls.

The election commission opposed the initial request, saying that no state law called for requiring documented proof of citizenship. It also argued that the DOT has no obligation to match citizenship data with voter records.

Waukesha County Circuit Court Judge Michael Maxwell rejected the commission’s argument, saying that the agency is failing in its duty to ensure that only lawful voters make it to the voter roll. He cited several statutes that he said made clear that only citizens could cast a ballot.

Maxwell didn’t specify how the election commission and local clerks should verify citizenship of new registrants, or how the commission should check for noncitizens on the voter rolls. He only called for the parties to figure out a plan, whether that be through matching the DOT’s citizenship data or using “other lawfully available means.” He called for that process to be substantially completed before the next statewide election, which is February.

Currently, applicants for voter registration in Wisconsin and most other states must attest, under penalty of perjury, that they are U.S. citizens who are eligible to vote, but they are not required to present proof of citizenship.

The issue of noncitizen voting has been hotly debated in recent years, though no widespread instances have been found. Republicans have used the concern to call for citizenship proof checks of all voters, even as data shows that such measures risk disenfranchising some U.S. citizens.

Republicans praised the decision, with state Rep. Amanda Nedweski calling it a “great win for election integrity.”

Democrats and the respondents in the case were largely mum.

Election commission spokesperson Emilee Miklas didn’t immediately respond to a request for comment. Riley Vetterkind, a spokesperson for the Wisconsin Department of Justice, which represents the commission and Department of Transportation, declined to say whether the agencies would appeal the decision.

Who are the parties?

The current plaintiffs, Pewaukee resident Ardis Cerny and Waukesha resident Annette Kuglitsch, sued the election commission, Department of Transportation, and officials in both agencies. They have argued that the election commission is violating their voting rights by not checking for noncitizens already registered to vote and seeking to vote.

Maxwell agreed, saying they “have a clear legal right to not have their votes diluted by a non-citizen casting an unlawful ballot.”

What happens now?

It’s unclear how the commission would verify the citizenship of all of Wisconsin’s registered voters by February. Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, said the decision will “definitely be appealed” and that the lower-court decision could be stayed while the appeal goes through the courts.

If the case reaches the Wisconsin Supreme Court, the liberal majority could overturn the order of the conservative-leaning Waukesha County Circuit Court.

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.

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• Judge Mark McGinnis will resign Feb. 1, but won’t face criminal charges after jailing a man during a probation hearing for an unrelated financial dispute in December 2021.

• The special prosecutor, La Crosse County District Attorney Tim Gruenke, said the decision was based on McGinnis’ decision to resign, acknowledgement he could have handled case differently and concerns about the separation of powers.

• The cement contractor who was jailed for three days said he may pursue a lawsuit now that the criminal case is resolved.

An Appleton-area judge won’t face criminal charges for jailing a man during a probation hearing over an unrelated financial dispute, but he will resign in February before his term expires, a special prosecutor assigned to the case said Thursday.

Outagamie County Judge Mark McGinnis had jailed cement contractor Tyler Barth in December 2021 over a private money dispute that was not a matter before the court. McGinnis accused Barth of theft, but Barth had not been arrested or charged with a crime. Wisconsin Watch first reported the case in January 2024.

La Crosse County District Attorney Tim Gruenke was appointed as a special prosecutor in the case in March 2024, more than a year after the Wisconsin Department of Justice opened a criminal investigation.

“That’s crazy, the fact that nobody’s going to prosecute him for it, that’s insane,” Barth said in an interview Thursday. “If he’s retiring, I guess that’s good, he can’t do that to nobody else,” but “it’s just bullshit, in my opinion.”

Gruenke said several factors led him not to charge: McGinnis had acknowledged through his attorney that he could have handled the matter differently; McGinnis’ decision to retire; and concerns about the separation of powers between the executive and judicial branches of government over charging a judge for a “mistake” made on the bench.

“This isn’t a case to test those parameters, especially since he acknowledged that he should have done it differently,” Gruenke said in an interview.

McGinnis informed Gov. Tony Evers in a letter Wednesday of his retirement effective Feb. 1, which he said would follow his 55th birthday and make him eligible for retirement benefits. McGinnis did not mention the investigation. He said his plans include educating judges in the U.S. and internationally.

McGinnis and his attorney Michelle Jacobs, the former top federal prosecutor in Milwaukee, did not reply immediately to calls and emails requesting comment.

Barth had appeared before McGinnis for a probation review hearing on a felony conviction for fleeing an officer. McGinnis accused him of stealing several thousand dollars from a cement contracting customer.

The customer’s spouse worked in the same courthouse for another Outagamie County judge.

Even though Barth had not been arrested or charged with theft, McGinnis ordered him jailed for 90 days, saying he would release Barth as soon as he repaid the customer.

The 32-year-old Fremont resident spent three days in jail before Fond du Lac attorney Kirk Everson intervened and persuaded McGinnis to release him.

Barth said Thursday he would seek an attorney in hopes of filing a lawsuit.

McGinnis was first elected in 2005, at age 34, and has been re-elected every six years without opposition. Most recently he was re-elected in April 2023 for a term that runs through July 2029.

Wisconsin judgeships are nonpartisan.

Gruenke, a Democrat, is a 30-year prosecutor, including the past 18 years as the La Crosse County district attorney.

Gruenke was appointed as special prosecutor by the Outagamie County Circuit Court in March 2024 after Outagamie County District Attorney Melinda Tempelis determined it would be a conflict of interest for her office to handle the case.

Legal experts agree judges have unparalleled latitude for taking away someone’s liberty, especially if the person is on probation. But invoking criminal penalties to compel action in an unrelated dispute arguably goes beyond a judge’s lawful authority.

Wisconsin legal experts said they weren’t aware of any instance in which a sitting Wisconsin judge was charged with a crime for actions taken as a judge.

Experts also had said they did not expect criminal charges against McGinnis, but that a referral to the state Judicial Commission would be possible. 

With McGinnis’ announced retirement, it’s unclear if the commission, which could take up the matter on its own, would do so.

Any matters before the Judicial Commission are generally confidential. They become public only if the commission files a complaint against a judge or if the judge being investigated waives confidentiality.

Editor’s note: This story corrects the spelling of Kirk Everson’s name.

Wisconsin judge will resign, won’t face criminal charges for jailing cement contractor is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

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• A special prosecutor was appointed in March 2024 to look into Judge Mark McGinnis’ decision to jail a concrete contractor in December 2021 over a money dispute during a probation hearing for an unrelated crime. The money dispute was with a courthouse employee.

• The special prosecutor, La Crosse County District Attorney Tim Gruenke, said he plans to make a decision on the case around Labor Day.

• Criminal charges against a judge for a decision made from the bench are possible, but unlikely and without recent precedent. Judicial misconduct cases have been reviewed by the Wisconsin Judicial Commission since 1978, and the Wisconsin Supreme Court has the final say on any penalty.

A special prosecutor expects to decide in early September whether to take the extraordinary step of filing criminal charges against an Appleton-area judge over his actions from the bench.

The special prosecutor, La Crosse County District Attorney Tim Gruenke, declined further comment to Wisconsin Watch on his investigation of Outagamie County Circuit Court Judge Mark McGinnis.

Wisconsin Watch reported in January 2024 that McGinnis’ actions were the focus of a Wisconsin Department of Justice criminal investigation that had been ongoing for more than a year. The March 2024 appointment of the special prosecutor has not previously been reported.

McGinnis had jailed cement contractor Tyler Barth in December 2021 over a private dispute that was not a matter before the court. 

When Barth appeared before McGinnis for a probation review hearing, on a felony conviction for fleeing an officer, McGinnis accused him of stealing several thousand dollars from a cement contracting customer.

The customer worked in the same courthouse for another Outagamie County judge. 

Even though Barth had not been arrested or charged with theft, McGinnis ordered him jailed for 90 days, saying he would release Barth as soon as he repaid the customer.

“I think it’s definitely crazy, just lock a guy up with no charge, no pending charge, no nothing and then get away with it,” Barth told Wisconsin Watch in a recent interview.

The 32-year-old Fremont resident said he spent three days in jail before Fond du Lac attorney Kirk Evenson intervened and persuaded McGinnis to release him.

“I just don’t think the guy should be able to do this to anyone else,” Barth said.

Barth later settled the money dispute with his customer. An attorney advised him it would be difficult to win civil damages against McGinnis because of judicial immunity, but Barth is waiting to see what happens with the criminal case before deciding whether to pursue a federal civil rights lawsuit.

McGinnis did not reply to requests seeking comment.

McGinnis was first elected in 2005, at age 34, and has been re-elected each time, without opposition. Most recently he was re-elected in April 2023 for a term that runs through July 2029.

Wisconsin judgeships are nonpartisan.

Gruenke, a Democrat, is a 30-year prosecutor, including the past 18 years as the La Crosse County district attorney. 

Gruenke was appointed as special prosecutor by the Outagamie County Circuit Court in March 2024 after Outagamie County District Attorney Melinda Tempelis determined it would be a conflict of interest for her office to handle the case.

Legal experts agree judges have unparalleled latitude for taking away someone’s liberty, especially if the person is on probation. But invoking criminal penalties to compel action in an unrelated dispute arguably goes beyond a judge’s lawful authority.

Judicial historian Joseph Ranney, an adjunct professor at Marquette University Law School, said he is not aware of any instance in which a sitting Wisconsin judge was charged with a crime for actions taken as a judge.

Jeremiah Van Hecke, executive director of the Wisconsin Judicial Commission, also said he was not aware of such a case.

Since 1978, the Judicial Commission has been the body responsible for investigating complaints against judges, which are then referred to the state Supreme Court. The Supreme Court has published 31 decisions that carried some form of punishment, often a reprimand, including several for actions taken from the bench.

In 1980, Milwaukee County Judge Christ Seraphim was suspended for three years without pay for a number of violations, including “retaliatory use of bail.” In 1985, retaliatory use of bail was one of the charges brought against Rusk County Judge Donald Sterlinske, who was ordered removed from office even though he had resigned.

Former state Supreme Court Justice Michael Gableman has agreed to a three-year suspension of his law license, but is awaiting formal action in that case. It centers on his work as a special counsel investigating the 2020 presidential election, not his work as a judge.

Marquette University law professor Chad Oldfather said, though it’s unlikely, McGinnis could be charged with misconduct in public office. That state law prohibits, among other things, officials from knowingly exceeding their lawful authority. 

But a referral to the Judicial Commission seems much more likely than a criminal charge, Oldfather said.

The commission could also initiate an investigation on its own.

A special prosecutor, Sauk County District Attorney Patricia Barrett, decided not to file criminal charges following a 2011 incident in which state Supreme Court Justice Ann Walsh Bradley accused Justice David Prosser of choking her during an argument in a justice’s office.  

The Judicial Commission recommended that the Supreme Court discipline Prosser for misconduct, but the court took no action for lack of a quorum of four of the seven justices. Three justices recused themselves because they were witnesses to the incident. 

Any matters before the Judicial Commission are generally confidential. They become public only if the commission files a complaint against a judge or if the judge being investigated waives confidentiality.

There have been criminal charges filed in connection with a judge’s role as a judge, though they were not in response to official actions taken by a judge. 

In April, federal prosecutors charged Milwaukee County Circuit Court Judge Hannah Dugan with two crimes for allegedly obstructing Immigration and Customs Enforcement from arresting a criminal defendant in her courtroom. Her case is pending.

In 2019, a Winnebago County jury found Leonard Kachinsky, a municipal court judge, guilty of misdemeanor violation of a harassment restraining order involving his court manager.

Special prosecutor weighing whether to criminally charge Outagamie County judge is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.